National Housing Law Project Housing Law Bulletin

In Minnesota, the District Court has recently enjoined the Minneapolis Public Housing Authority from asking all applicants about their prior drug treatment and requiring them to release their medical records, unless there is affirmative evidence regarding recent drug use or other unacceptable conduct. The case was brought by a public housing applicant who had been asked about past drug treatment and required to release his treatment records and then was rejected by the PHA. The court found the PHA’s general policy to be in violation of the Fair Housing Act and other anti-discrimination laws, while exceeding the authority conferred by the Extension Act. The court declined, however, to certify a class or to order the PHA to admit the named plaintiff.³

The plaintiff in the case had applied for public housing in May of 1996. The evidence eventually established that he had a history of paranoid behavior when using drugs and of minor crimes related to drug abuse, had used illegal drugs as recently as March of 1995, had since completed a drug treatment program, and still drank a six-pack of beer a couple of times a month. Following its standard procedures, the PHA asked the plaintiff on his application: "Have you or any member of your family intending to live with you in public housing EVER been in a detoxification center or a chemical dependency treatment program and, if so, where?" The plaintiff answered yes and the PHA required him to submit proof of having completed treatment. The PHA also required him to sign a release allowing the PHA to secure medical records, drug and alcohol treatment summaries, program involvements, case plans and detox admissions from the local county treatment center, which he did.

The PHA rejected his application and the rejection was sustained on an administrative appeal because of his current alcohol use, his history of paranoid behavior when abusing drugs and his history of minor crimes related to drug abuse.

When his application was finally rejected, plaintiff sued the PHA in November of 1996. The claim was that the PHA’s inquiries into his past drug and alcohol abuse were prohibited by the Fair Housing Act,⁴ the Rehabilitation Act of 1974,⁵ the Americans with Disabilities Act,⁶ the Minnesota Human Rights Act,⁷ and the Minneapolis Civil Rights Ordinance.⁸ In addition, the plaintiff claimed that the PHA had discriminated against him and others on the basis of their history of prior drug or alcohol abuse. He sought class certification, a declaration that the PHA was in violation of the anti-discrimination laws, and injunctive relief barring the PHA from making the inquiries he challenged and requiring it to implement a discrimination-free application process. In addition, plaintiff sought individual relief placing him on the PHA waiting list in his proper place and compensating him for his emotional stress and excess rent payments.

The case presented the court the difficult question of how to reconcile the provisions of the Extension Act with the anti-discrimination acts. The Extension Act requires each PHA to establish occupancy standards that exclude applicants if they illegally use drugs or if the PHA has reasonable cause to believe that their illegal use of drugs or abuse of alcohol may interfere with the other tenants’ rights. By its own terms, these exclusion provisions apply "notwithstanding any other provisions of law."⁹

On the other hand, as the court noted, it is well established that the anti-discrimination acts protect former drug users and alcoholics from discrimination based upon their former use or alcohol abuse.¹⁰ However, they do not protect people who are currently using illegal drugs or currently abusing alcohol.

The first issue to be resolved by the court was whether the Extension Act had made the anti-discrimination acts’ protections for former drug users and alcoholics inapplicable to public housing admission decisions, especially because of the "notwithstanding any other law" proviso. The court concluded that the Extension Act had not impliedly repealed the Fair Housing Acts and the other anti-discrimination laws. It supported that conclusion by first noting that the language of the Extension Act did not explicitly repeal any statute, much less the anti-discrimination acts. In the court’s view, it could not assume that Congress had repealed two decades of legislation aimed at eradicating discrimination. In the absence of a direct conflict that would make the Extension Act irreconcilable with the anti-discrimination acts, the former could not be considered to have implicitly repealed the latter.

In the absence of any repeal, the court’s task was to see how the two sets of laws fit together. The court concluded that the Extension Act added a requirement to the eligibility standards for public housing but did not eliminate the PHA’s duty not to act in a discriminatory fashion when applying that standard. It concluded that the PHA had acted in a discriminatory fashion because it had sought broader information than the Extension Act had authorized and intruded into the privacy of former addicts more than was necessary to apply the Extension Act’s new eligibility requirement.

The court read the Extension Act as barring the admission of people currently involved in unlawful drug use, which was consistent with the anti-discrimination acts that protect former addicts but not current users. Given that limited focus of all the statutes on current use, the PHA could seek information about current use, but had to narrowly focus its inquiries toward such information. The court found unlawful the PHA’s asking all applicants about past drug treatment, not merely applicants whom it had reasonable cause to believe might be current users. Similarly, the court concluded that the PHA could not require all applicants to release their records from the county drug treatment center. Requiring such universal disclosure of information about past drug treatment and drug use constituted an invasion of privacy that was beyond the authorization of the Extension Act and within the prohibitions of the anti-discrimination acts.

On the other hand, the court sought to make it clear that the PHA is not barred from seeking information about current drug use. If there is evidence of past drug use, the PHA can oblige the applicant to provide information or reasonable assurances that they are not currently using drugs unlawfully. If there is no reasonable assurance that prior drug use has ceased or evidence of recent illegal drug use, the PHA could seek information from treatment centers and physicians. If all the information received leads to a reasonable conclusion that there has been recent use, the PHA may reject the applicant.

Since so much of its reasoning turned on the distinction between current use and past use, the court also sought to make clear that current use includes more than being under the influence of drugs at the time of application. Citing Shafer v. Preston Memorial Hosp. Corp., 107 F.3d 278 (4th Cir. 1997), the court defined current use to include any ongoing activity that has not permanently ended.¹¹

Having laid out what the PHA may and may not do in general terms, the court then turned to the plaintiff’s situation. It concluded that the inquiries the PHA initially made and the releases it required were unlawful, but that the violations were harmless because even without them the PHA would have had enough evidence to secure the information it needed to lawfully reject the plaintiff’s application based on recent drug use. Because the plaintiff did not have three years of recent rental history, he had to submit three references under the PHA’s screening procedures. One of those references was from a social worker who disclosed his past drug use. His criminal records which the PHA was allowed to consider also revealed past offenses related to drug use. That information was considered enough to justify the PHA’s seeking further information relating to current use, including inquiring about past drug treatment and requiring a release of medical records regarding drug abuse. Although the PHA should not have made those inquiries and required the release initially, once it had the information from the social worker and the criminal record, those inquiries would have been permissible.

The facts that eventually came out of those further inquiries were enough to establish a reasonable belief that the plaintiff had engaged in recent use which would support the rejection decision. As a result, the court denied plaintiff’s request for damages and for injunctive relief placing him on the waiting list. Because of the PHA’s unlawful conduct in his case, and the evidence that that was its standard practice prior to the litigation, the court did enjoin the PHA from asking all applicants whether they or anyone in their household had ever secured drug treatment and from requiring all applicants to allow the release of their medical records.

The court also decided not to certify the class because there was not sufficient evidence of how many applicants had disabilities due to drug or alcohol addiction. The evidence did show that there were 141 applicants who were categorized as disabled by the PHA, but no evidence of how many of them had a disability related to drugs or alcohol. Without that evidence, the court considered that plaintiff had not met the numerosity requirement. The court also refused to approve a class defined to include all applicants with disabilities because the only common question related to applicants with disabilities related to drugs or alcohol.

This case takes on added significance because it is the one that provoked the Minnesota PHAs to ask Senator Grams to sponsor an amendment to the pending Senate housing bill, S. 462, expanding their power to make these kinds of inquiries. That amendment slowed down consideration of the bill on the floor of the Senate. However, the disagreements about the amendment were resolved by compromises that limited the powers it would confer, and the bill, S.462, passed the Senate on September 26, 1997.¹²

1. HUD, "One Strike and You’re Out" Policy in Public Housing (March 1996); see HUD Pushes Aggressive Eviction Campaigns as the Answer to Crime in Public Housing: One More Time, 26 HOUS. L. BULL. 45 (Apr. 1996).
2. Housing Opportunity Program Extension Act of 1996, Pub. L. No. 104-120, 110 Stat. 834 (Mar. 28, 1996), hereafter "Extension Act."
3. Campbell v. Minneapolis Public Hous. Auth., No. 4-96-CV-1163, 1997 WL 583202 (D. Minn. order Sept. 16, 1997).
4. 42 U.S.C.A. § 3602 (West 1996).
5. 29 U.S.C.A. § 504 (West 1996).
6. 42 U.S.C.A. § 12102 (West 1996).
7. Minn. Stat. § 363.03 Subd. 13 (1995).
8. Minneapolis Code of Ordinances, tit. 7, ch. 139, § 139.20 (1991).
9. 42 U.S.C.A. § 1437n(e)(1) (West Supp. 1997).
10. Campbell, supra note 3, slip op. at 10-11.
11. Id. at 13.
12. See section on crime and drugs in article, Housing Authorizing Bill Passes Senate Floor, elsewhere in this issue